Your opinions on GDC reform

on 14 July 2014

Never has such a weight of opinion and support in the recent condemnation of the GDC (General Dental Council) been seen in the profession. The uniting of the profession behind a common cause, bringing all registrants together in their criticism of a regulator that has been acting disproportionately and unjustly against those trying their best to help care for patients has gained a momentum that will prove difficult for the GDC to now resist. The GDC has to publically acknowledge the current feelings of the profession, and now address the failings pointed out by its own regulator and the profession it regulates. As a united profession we must also consider if those in office at the GDC for making the decisions that have lead to this situation are the right people we need to drive through the reforms needed.

It's obvious to all but the GDC itself that reform is now clearly what is needed, and in the same way once we’ve diagnosed what's wrong with our patients, we are the people who should be listened to moving forward so the problem no longer exists. Some are of the opinion that the GDC should be abolished, and indeed there is a poll on Change.org with thousands of signatures that proposes this. The argument that a replacement super regulator replacing all other regulators could not be any worse than the regulator we currently have, is a valid one. But look what happened when the CQC (Care Quality Commission) appeared as a super regulator. We just change one set of problems for another, and increase the timescale for change. The existence of the GDC is already enshrined in law, and it is probably far swifter and easier to reform it rather than start again and risk losing what small influence we still have.

What is clear is that the current GDC is not fit for the purpose of regulating our profession, having become hugely expensive, slow, and not understanding the profession it regulates. Many of us will have ideas of how it should reform, but I wonder if my opinions hopefully promote further discussion. You may or may not agree with some of them, but now is the time we, as a profession, need to start presenting solutions, and continue this united approach to ensure both the protection of the patients and the future of our profession is safe.

Fitness to practise cases

There are some simple, unarguable facts. The GDC cannot afford to hear the number of cases it has. But that is because it has too many cases, and they are of the wrong type, which in turn is because its early resolution and arbitration system is ineffectual. It is not transparent in its processes, and it is disproportionate in its actions against registrants. There is little representation of the profession within it, and it is now crossing the fair boundaries by use of advertising like that seen in the Daily Telegraph. It appears to view the profession it regulates with contempt and arrogance.

When there is little dental expertise used to filter out groundless or spurious claims early on in the case selection process, the number of cases getting further down the process will inevitably increase, creating a backlog in time and an increase in costs. Having initial case handlers whose only experience of dentistry seems to be possessing a set of teeth of their own, who can only obey the policy set before them (without being able to make an educated judgment on whether a complaint should go further) is bound to increase the amount of cases that progress up the complaints pathway. The solution is quite simple; have proper dental knowledge input at the very earliest stage of the process so only the true complaints can reach the next stage. Even the CQC has seen recently that it needs to get dentists on board in the inspection process as its own expertise is lacking. Funding this appropriately by the GDC will cost far less in the long-term as there will be less reliance of expensive legal counsel at the latter stages.

Small local panel

In addition, some of these complaints could then be heard by a small local panel, which would cost significantly less for the GDC to fund than a full hearing. To show fairness, this could be in a neighbouring county to show transparency so its not seen to be the old boys (or girls!) network at play. Many of the cases the GDC rules on are single complaints that, in the past, would have either never been heard, or resolved simply and swiftly. Many of these would appear to stem from the willingness of the PCTs (Primary Care Trusts) and now the LATs (Local Area Teams) to report straight to the GDC rather than having any mechanism of its own to deal with an issue that arises on its patch. LDCs (Local Dental Committees) have the experienced practitioners available to assist in any process like this and it may be that they can be tasked with developing a solution.

There is even a check mechanism in this in that if the local resolution doesn’t work, then the complaint can still go further up the line to the GDC.

The entire process would then speed up and the 'logjam' clear. In addition, there can be no trawling for infractions in other notes or not related to the complaint, which has no doubt added to the volume of cases brought with little merit.

No win no fee

But one of the big problems regarding the cost of a complaint is that there is no responsibility on the complainer to contribute to the cost of a case. Complainers are not necessarily patients, but may be local area teams or other practitioners with an axe to grind. I am not suggesting we stop protecting the public, but is it fair that there is absolutely no cost whatsoever to a complainer who can set in motion a multi-thousand pound process, which those complained about have to pay for without taking any risk themselves? This certainly doesn’t happen in law, even the 'no win no fee' system usually insists the claimant takes some form of insurance out. Why should we operate differently?

There are parallels in this in the way employment tribunals have recently been restructured. Since the introduction of costs being paid by a complainant, and now the introduction of mandatory conciliation, the number of cases heard has been reduced significantly. In addition, the size of the fee is dependent on the severity of the case to be considered. I see this as no different to our situation. Obviously there would need to be a mechanism by which the less able members of the public would not be disadvantaged in bringing a complaint, but surely this can be worked out. However, the current system means that virtually any complaint is guaranteed to start costing the registrants money right from the beginning, whether it is justified or not. It might also focus the minds of the LATs and the more aggressive lawyers, if they had to start paying some contribution to the costs right from the beginning, to only start the process if there was a justified complaint.

Reduce the number of appeals

Another part of the controlling of costs must be to reduce the number of appeals that are made, which are again paid for by the registrants, and cost a significant amount of money, due to the expertise and time needed for the GDC to defend its decision in the high court. If an appeal is lost by the GDC, then we have effectively now paid again for this same case out of our retention fees. If the pre-acceptance of the case was more appropriate, and the right kind of cases go to the fitness to practise (FTP) process, and more importantly an appropriate level of proof is used, then the appeals would likely then be needed less commonly than now. This doesn’t remove the ability for someone to appeal, but hopefully there will be less of them needed.

Burden of proof

Which brings me onto the burden of proof used by the GDC in cases. The GDC by its remit can prosecute its registrants; and this can mean that they loose their ability to work and loose their livelihood if a case is proven. Yet the cases are judged on the civil level of proof, which is a balance of probability. Coupled with a lack of understanding of the profession, the increasing number of lay members, and the trawling of records to find some infraction somewhere in order to try to put evidence for a case together in some of these proceedings, then this burden of proof is now surely inappropriate. When an entire career, livelihood, home life, etc can be threatened by what is effectively a 51% decision, it is no wonder the profession is scared, and these reforms are being called for.

Surely then, in the cases that do go to the higher levels of the proceedings (especially if robust clinical triage of complaints and local resolution by dental trained staff is utilised), then a 'beyond reasonable doubt' level of proof should be used as it is used in the criminal courts.

In addition to this, on reading the press release from Dental Protection, it would appear that the legal tests are not, in its opinion, being applied correctly to FTP cases. The wisdom and expertise that Dental Protection bring to the table must not be ignored, and whilst it can be argued that it has a vested interest in acting on behalf of its members, if there is an issue on how the GDC is applying tests, then this must not be allowed to continue.

Unfortunately the structure of the GDC is such that there seems to be no swift and effective feedback of mechanism of redress in situations like this. Therefore the reforms must include robust, fair and proportionate corporate governance systems to be put in place. If these are indeed in place currently, they seem to be completely ineffectual.

Oversight committee

The reforms could at the very least bring in an oversight committee, made up of representatives of the profession and lay members, maybe with the BDA (British Dental Association) involved in some manner that doesn’t bring into question its own vested interests; a committee that acts to ensure the GDC is adhering correctly to its statutory duties to protect the public. This would also require the GDC to be completely transparent in all its dealings with the profession, the public and within itself, and could have a direct mechanism to report the GDC directly to the Professional Standards Authority swiftly should problems occur. This would not be a committee designed to thwart the day-to-day work of the GDC in regulating us and protecting the public; but it would be making sure the GDC is doing what it is legislated to do correctly and fairly. The committee could even make sure the GDC adheres to the human rights legislation, especially concerning publishing registrants home addresses publically when other forms of electronic address are acceptable.

Council members

The council itself should have a registrant as its chair. However, whilst having other lay members on the council gives important perspective to its work, many of the lay members of councils and committees also tend to make careers from this, and I worry if they have enough perspective of the real world problems faced by dental professionals.

A more equitable structure may be for equal numbers of dentists, DCPs (dental care professionals) and lay members to be on the council. There needs to be a fully transparent selection procedure, under watchful eyes of the oversight committee who can ensure this selection was appropriate. Pre-vetting of the candidates to avoid a beauty contest type election will be required, and again our professional bodies could then become involved in this process of pre-qualification, but again they must put any vested interest aside and there must be mechanisms to ensure this.

Reporting other issues

If any system under which registrants are working is affecting patient care in any way, then the council should be duty bound to report it. If that means the GDC becomes critical of the Department of Health over a new contact, NHS policy etc, or target driven contracts that are shown to affect patient care, then, in the interests of its statutory duty to protect the patients and regulate the profession, it should be forced to make this public. Those practitioners that game and cheat will do so no matter what system is in place, whether or not they are private or NHS. And a reformed GDC should be able to deal with them appropriately. But having this mechanism in place would require transparency from all the stakeholders involved in dental care in this country.

If the GDC reported that on an advert in the national press don’t you agree that it would be a good use of our ARF (annual retention fee)?

Unless the remit of the GDC includes this requirement, in my opinion we will only ever scratch the surface of protecting the public by treating the symptoms, and not curing the disease.